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Landfill, Inc. v. Pollution Control Bd.





Appeal from the Circuit Court of Cook County, the Hon. Raymond K. Berg and the Hon. Richard L. Curry, Judges, presiding.


Plaintiff, Landfill, Inc. (Landfill), filed a complaint for declaratory judgment against defendant, the Pollution Control Board (Board), in the circuit court of Cook County, seeking a declaration that Rule 503(a) of the Board's procedural rules was not authorized by the Environmental Protection Act (Act) (Ill. Rev. Stat. 1975, ch. 111 1/2, pars. 1001 to 1051) and seeking an order enjoining the Board from conducting further proceedings under its Rule 503(a). The circuit court upheld the validity of Rule 503(a) and dismissed Landfill's action. This court allowed Landfill's motion for direct appeal under our Rule 302(b) (58 Ill.2d R. 302(b)).

The complaint related that Landfill had filed an application for a sanitary landfill permit with the Environmental Protection Agency (Agency) in March of 1975. The Agency denied the application in October of 1975 until such time as Landfill supplied information relating to the land use and zoning of the site and surrounding area. Landfill appealed to the Board pursuant to section 40 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1040) from the denial of the permit. The Board ruled that Landfill was required to provide the information requested by the Agency. No determination on the merits of Landfill's permit application was made by the Board. Landfill then submitted the required information to the Agency. The Agency held two days of public hearings at which interested third parties presented evidence and cross-examined Landfill's witnesses. Thereafter on July 2, 1976, the Agency issued a development permit to Landfill.

Following the issuance of the permit, certain of the individuals and groups who had made their objections known to the Agency during the permitting process and who are intervenors in the instant proceedings, filed an application before the Board under Procedural Rule 503(a) and Solid Waste Regulation 205(j) seeking, inter alia, to revoke the permit on the ground it was issued by the Agency in violation of the Act. The intervenors filed their application before the Board in July of 1976. The Board entered an interim order in October of 1976 stating that the application was in the nature of an enforcement action, rather than in the nature of a review, and that third parties who were not required to participate in the Agency's permit evaluation process were entitled to present new evidence to prove the violations alleged in their enforcement application.

After the Board issued its interim order, Landfill filed the instant action in the circuit court of Cook County wherein it challenged Rule 503(a). Landfill then filed a motion for preliminary injunction against the proceedings before the Board and for an expedited hearing on the complaint. On November 17, 1976, Judge Raymond Berg entered the preliminary injunction and ordered the Board to answer the complaint or otherwise plead on or before November 30, 1976, and to appear for further hearing on December 3, 1976. The hearing date of December 3, 1976, was continued to December 8, 1976, at which time Judge Berg entered an order on Landfill's complaint holding that Rule 503(a) was void. On December 3, 1976, however, the Board had filed a notice of interlocutory appeal to the appellate court under our Rule 307(a)(1) (58 Ill.2d R. 307(a)(1)). The appellate court affirmed the preliminary injunction. (52 Ill. App.3d 154.) Thereafter the case was assigned to Judge Richard Curry of the circuit court of Cook County for further proceedings. On January 18, 1978, Judge Curry vacated the order that Judge Berg had entered after the Board had filed its notice of interlocutory appeal. On the same date Judge Curry held that the circuit court had jurisdiction to decide the issues raised in Landfill's complaint and that Rule 503(a) and Rule 205(j) were authorized by the Act. He dismissed Landfill's declaratory judgment action.

The Board and the intervenors raise the threshold question of whether the circuit court had jurisdiction to hear the declaratory judgment action filed by Landfill. They argue that Landfill has not exhausted its administrative remedies or complied with the Administrative Review Act (Ill. Rev. Stat. 1977, ch. 110, par. 264 et seq.) and therefore is precluded from proceeding in circuit court to challenge the Board's assertion of authority, under its Rule 503(a) and Rule 205(j), to hear third-party challenges to the allowance of permits. Under the applicable administrative procedures, judicial review lies only from final orders of the Board (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1041; see Bulk Terminals Co. v. Environmental Protection Agency (1976), 65 Ill.2d 31, 39-40). The Board and the intervenors argue that Landfill should have first submitted the issue to the Board; upon a Board ruling adverse to Landfill, it should have proceeded before the Board and then sought review in the appellate court under section 41 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1041), which expressly makes the Administrative Review Act applicable.

We hold, however, that exhaustion of administrative remedies is not required in this case. This court has held that where an administrative rule asserting administrative authority is challenged on its face as not authorized by the enabling legislation, exhaustion is not required. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 548.) Exhaustion is not required where a statute or rule under which an administrative body purports to act is challenged as unauthorized, since the judicial determination will affect the jurisdiction of the administrative body in all matters, not only in the instant circumstances (see Walker v. State Board of Elections (1976), 65 Ill.2d 543, 552).

The purposes for the exhaustion requirement are not served where an administrative assertion of authority to hear or determine certain matters is attacked on its face on the grounds that the assertion of jurisdiction is not authorized by statute. The rationale for the exhaustion doctrine is set forth in Illinois Bell Telephone Co. v. Allphin (1975), 60 Ill.2d 350, 358:

"[T]he reasons for its existence are numerous: (1) it allows full development of the facts before the agency; (2) it allows the agency an opportunity to utilize its expertise; and (3) the aggrieved party may succeed before the agency, rendering judicial review unnecessary. 2 F. Cooper, State Administrative Law 572-574 (1965); L. Jaffe, Judicial Control of Administrative Action 424-426 (1965); 3 K. Davis, Administrative Law Treatise secs. 20.01-20.10 (1958), and 1970 Supplement at 642-669."

Where an agency's statutory authority to promulgate a rule and exercise jurisdiction is in issue, no questions of fact are involved. The agency's particular expertise is not implicated in statutory construction. Further, there is virtually no chance the aggrieved party will succeed before an agency where the issue is the agency's own assertion of authority. Cf. Van Laten v. City of Chicago (1963), 28 Ill.2d 157, 159-60, and Herman v. Village of Hillside (1958), 15 Ill.2d 396, 408, holding in the zoning context that exhaustion is not required before a declaratory judgment action may be filed where to seek further administrative action would be a useless act because the agency has already had occasion to express its opinion on the issue.

We conclude that where an administrative body's assertion of jurisdiction is attacked on its face and in its entirety on the ground that it is not authorized by statute, exhaustion of administrative remedies and compliance with the Administrative Review Act is not required. Under these circumstances the judicial determination involves a question of law which will affect the jurisdiction of the administrative body in all cases and will hasten the administration of justice. The circuit court had jurisdiction to hear Landfill's declaratory judgment action.

We reject also the Board's argument that section 29 of the Act (Ill. Rev. Stat. 1975, ch. 111 1/2, par. 1029) required Landfill to file its action in the appellate court rather than in the circuit court. That section provides:

"Any person adversely affected or threatened by any rule or regulation of the Board may obtain a determination of the validity or application of such rule or regulation by ...

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